New Law Review Article (Excerpts) on the Pre-Trial Chamber (PTC)
Was There Good Reason to Order Pre-trial Detentions of the ex-Khmer Rouge Functionaries?
Introduction
Shortly after the inception of the Extraordinary Chambers in Courts of Cambodia (ECCC), the reputed commandant of the central security prison of Democratic Kampuchea, Kaing Guek Iev, was transferred into its custody from the military prison where he had been held for 8 years prior on orders of the Military Tribunal. Kaing Guek Iev continued to retain his lawyer of 8 years, Kar Savuth, and was expeditiously assigned an international lawyer, François Roux. Kaing Guek Iev’s co-lawyers, subsequently, filed an appeal of their client’s pre-trial detention earlier ordered by the Office of Co-Investigating Judges (OCIJ). As per the rules of procedure of the ECCC such appeal was filed to the Pre-Trial Chamber (PTC or the Chamber). Following this appeal, public and in camera hearings were held before the decision was publicly announced on 3 December, 2007 denying the appeal.
Noun Chea, the reputed Democratic Kampuchea’s second in command, was first to be arrested directly by the ECCC. He already had a Cambodian lawyer, Son Arun, selected by the time of this arrest and communicated his name to the OCIJ at his first interview. The court later appointed two international lawyers, Michiel Pestman and Victor Koppe, to serve alongside Son Arun. This defense team filed an appeal of Noun’s pre-trial detention ordered by the OCIJ. This appeal, as per the Internal Rules (IRs) of the ECCC, was filed to the PTC. Following this appeal, public and in camera hearings were held before the decision was publicly announced on 20 March, 2008 denying the appeal.
Shortly after the inception of the Extraordinary Chambers in Courts of Cambodia (ECCC), the reputed commandant of the central security prison of Democratic Kampuchea, Kaing Guek Iev, was transferred into its custody from the military prison where he had been held for 8 years prior on orders of the Military Tribunal. Kaing Guek Iev continued to retain his lawyer of 8 years, Kar Savuth, and was expeditiously assigned an international lawyer, François Roux. Kaing Guek Iev’s co-lawyers, subsequently, filed an appeal of their client’s pre-trial detention earlier ordered by the Office of Co-Investigating Judges (OCIJ). As per the rules of procedure of the ECCC such appeal was filed to the Pre-Trial Chamber (PTC or the Chamber). Following this appeal, public and in camera hearings were held before the decision was publicly announced on 3 December, 2007 denying the appeal.
Noun Chea, the reputed Democratic Kampuchea’s second in command, was first to be arrested directly by the ECCC. He already had a Cambodian lawyer, Son Arun, selected by the time of this arrest and communicated his name to the OCIJ at his first interview. The court later appointed two international lawyers, Michiel Pestman and Victor Koppe, to serve alongside Son Arun. This defense team filed an appeal of Noun’s pre-trial detention ordered by the OCIJ. This appeal, as per the Internal Rules (IRs) of the ECCC, was filed to the PTC. Following this appeal, public and in camera hearings were held before the decision was publicly announced on 20 March, 2008 denying the appeal.
Ieng Thirith, Democratic Kampuchea’s Minister of Social Affairs, was arrested directly by the ECCC. She was assigned a Cambodian lawyer, Phat Pouv Seang, and an international lawyer, Dianna Ellis. This defense team filed an appeal of Ieng’s pre-trial detention ordered by the OCIJ. This appeal was filed to the PTC which held public and in camera hearings and resulted in a decision issued on 9 July, 2008, in part, upholding the OCIJ’s reasoning but nonetheless denying Ieng’s appeal.
Said appeal decisions established an important landmark by being, perhaps, the first fully reasoned decisions ever produced by the Cambodian system of criminal justice, along with creating an environment which made the analysis below – and other analyses which might ensure -- possible.
(1) The Pre-trial Detention Test
The question of pre-trial detention and its predicates was destined to be an interesting one due to Cambodia’s far-reaching history of abuse of such detention for extrajudicial reasons.[1] Thus, a mathematically constructed and construed test was necessary to avoid any future accusations or insinuations of irregularities on the part of the ECCC in ordering pre-trial detention. To make matters more complicated, Cambodia happened to be in transition from the criminal procedure laws of the 1990s to a newly-drafted law at the time of the inception of the ECCC. This was exacerbated by the fact that the new criminal procedure law had yet to be adopted and it was unclear when and in what form such an adoption would take place. The criminal procedure in effect at the time, ergo, remained the criminal procedure adopted in the 1990s.[2] The differences between the pre-trial detention test built into the criminal procedure of the 1990s and that appearing in the text of the then draft Cambodian criminal procedure law were drastic and could not be reconciled into one middle-ground test. The presence of international jurists on the court also meant that there would be a strong drive for the adoption of the pre-trial detention tests of the existing international criminal tribunals. In order to give preference to one of the pre-trial detention tests established by other international and hybrid criminal tribunals, the ECCC judges would have to overcome the ECCC Agreement’s stipulation that “the procedure shall be in accordance with Cambodian law”.[3] The ECCC Agreement provided for only two exceptions when international law could be resorted to, namely, (1) where Cambodian law does not deal with a particular matter, and (2) where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law[4]. Neither of these applied to the Cambodian law’s pronouncements on pre-trial detention which were dealt with by the 1990s procedure[5] and the then draft criminal procedure law, nor were issues raised by the ECCC as to the level of certainty of their interpretation or application.
Had the 1990s criminal procedure been adopted by the ECCC, the pre-trial test would have looked as follows:
(1) there is a risk of escape or non-appearance manifested by the absence of such factors as:
(a) a job
(b) a family
(c) a home
(2) if there is a reason to believe that the accused will influence witnesses or the conduct of the investigation if released.[6]
Had the ECCC chosen to use the pre-trial detention of the then draft criminal procedure law, the following is what the pre-trial detention test would have looked like:
(1) guarantee the presence of the accused during the proceedings against him
(2) prevent any harassment of witnesses or victims or prevent any collusion between the accused and his accomplices
(3) stop the offense or prevent the offense from happening again
(4) preserve evidence and exhibits
(5) protect security of the accused
(6) preserve public order from any disturbance caused by the offense.[7]
The court instead chose the following test:
(1) there is well-founded reason to believe that the person may have committed the crime or crimes specified in the Introductory or Supplementary Submission and
(2) the Co-Investigating Judges consider Provisional Detention to be a necessary measure to:
(a) prevent the charged person from exerting pressure on any witnesses or victims prevent any collusion between the charged person and accomplices of crimes falling within the jurisdiction of the ECCC
(b) preserve evidence or prevent the destruction of any evidence
(c) ensure the presence of the charged person during the proceedings
(d) protect the security of the charged person
(e) preserve public order[8]
A close examination of the test chosen by the ECCC and the test of the then draft criminal procedure law shows a great degree of similarity and in fact bears only two exceptions which are those of the “stop the offense or prevent the offense from happening again” sub-prong which is not included in the ECCC test and the "well-founded reason to believe" prong which appears in the ECCC test and does not appear in the text under Cambodian law. It is likely that the "stop the offense or prevent the offense from happening again" sub-prong was removed for an understandable reason which is the cessation of all offenses associated with the jurisdiction of the ECCC, as of almost 30 years, and the absence of grounds to believe that their resurgence was a possibility at the time of the operation of the tribunal. ECCC therefore did not significantly deviate from the test established under Cambodian law, in this respect, however, the court significantly altered the draft criminal procedure law’s test by introducing the “well-founded reason to believe” prong which did not appear in the then draft criminal procedure law and which added the complexity of determining the meaning of ‘well-founded’ in international law, a matter briefly discussed further in this paper. The significance of the addition of the “well-founded reason to believe” prong to the test of the draft lies in the fact that a failure to prove it has a faltering effect on the entire rest of the test which cannot survive the court’s negative response to its satisfaction. It is important to note that the IRs which serves as source of the ECCC’s pre-trial detention test was a document which – unlike the ECCC Agreement and ECCC Law – was never offered to the Cambodian people for acceptance and instead was framed by the ECCC judges upon the invocation by them of a self-proclaimed authority to do so for which there are absolutely no grounds in the ECCC Agreement or the ECCC Law. The court thus acted ultra vires in invading the domain of another branch of government power and assuming powers not vested in it by any statutory pronouncements.
As for international law and the procedural pronouncements of the existing international criminal tribunals, none of the prongs of the pre-trial detention test specifically established by them – and not appearing in any known domestic jurisdiction -- were incorporated into the fabric of the ECCC’s pre-trial detention test.
(b) ensure the presence of the charged person during the proceedings
The traditional way of determining whether this sub-prong can be satisfied is the existence of such attributes as family, job, position in community, etc. The PTC decided not to go down the beaten track and blaze a new trail instead. To this end, the Chamber set out to examine Kaing’s past behavior to potentially form it into a pattern demonstrating whether Kaing was a flight risk. PTC started off by asserting that Kaing “disappeared from public view” between 1979 and 1999[1]. There are several problems with this argument: (1) to disappear from public view one must be in public view to begin with for which there is no corroborating evidence in Kaing’s case who never was a national celebrity prior to 1979, whose work was secretive and who was only known to his subordinates, superiors and family; (2) the Chamber points out the lack of clarity about Kaing’s whereabouts during said years, which can only be attributed to insufficient research on the matter; (3) the facts that Kaing did not visit his family, changed jobs, changed his name and lived in a particular part of the country hardly amount to persuasive proof of the Chamber’s assertion that he is a flight risk now; (4) the fact that Kaing allegedly disappeared when the first story about him came out is understandable and precautionary, which is not the case today as his name has been communicated to the public sufficiently well in the last 10 years, an observation with which the Chamber agrees[2].
The bedrock of the PTC’s argument for the satisfaction of the test at hand seems to be its assertion that Kaing currently presents a flight risk due to “the possibility of being sentenced to life imprisonment”[3] and that “he will be tried publicly before his victims and their relatives”[4]. In the decision on Noun appeal, the Chamber, however, takes a different approach and asserts that “the risk of flight cannot be evaluated solely on the basis of the gravity of the crimes and possible sentence”[5] which is an interesting roundabout from what seems to be the Chamber’s key argument for the satisfaction of the same test in the decision on Kaing’s appeal. This turnaround in Noun’s case is particular interesting in light of the fact that in its subsequent decision -- Ieng’s case – the PTC scaled said argument back down to that of Kaing’s case[6] leaving out its own admission in Noun’s case that “the risk of flight cannot be evaluated solely on the basis of the gravity of the crimes and possible sentence”.
The Chamber rejected the defense’s argument that Kaing would not be able to flee the ECCC jurisdiction due to lack of means to do so (such a passport, money, etc). The judges argued that they believed that even absent such means Kaing would be able to cross the border illegally or hide himself in Cambodia, “as he did before”[7]. PTC, in respect to the latter, omitted several crucial circumstances which existed during the time Kaing, in the opinion of the Chamber, successfully hid himself in Cambodia and the present time. One such fact is that when Kaing previously “hid” himself there was a certain commotion in Cambodian society caused by the ongoing civil war which made it possible. Another fact is that no one had lost sight of Kaing during this period besides the researchers to whose work the Chamber is referring[8]. Yet another, and perhaps most important, fact is that no one was looking for Kaing prior to 1999 which explains why he could “hide” for such a extended period of time and so successfully. This of course would not be the case if he fled or attempted to flee now, if released pending trial. One fairly recent case of an ex-Khmer Rouge fugitive, Chhouk Rin, is a good example of the Cambodian police’s ability to locate fugitives, even if it takes time and even if they are hiding in a familiar terrain and with a lot of support from the local population[9]. Unlike Rin, however, Kaing does not enjoy the support of the population of any part of Cambodia and is extremely unlikely to be aided and abetted by his former colleagues. These are well-established facts which the PTC chose not to take into consideration.
In Noun’s case and for lack of a history of “hiding”, the PTC outlandishly asserted that Noun’s exercise of his right to remain silent is not consistent with his alleged willingness to participate in the proceedings[10] which coupled with the earlier discussed length of sentence argument amounts to the PTC’s purported satisfaction of the sub-prong at hand.
In Ieng’s case, the Chamber relied on a theory that Ieng had “connections”[11] in Pailin which could help her flee across the border into Thailand if released pending trial. The Chamber agreed with the defense’s argument that “the Charged person could have attempted to flee before”[12], but contended that “the situation is no longer the same now that she is under investigation before the ECCC”[13]. The PTC did not care to elaborate what makes the present situation different from that of June, 2006 when the ECCC judges were sworn in and when it became clear that the process would go ahead. Ieng thus had exactly one year between the beginning of the process and her arrest[14] to make relevant arrangements, had she desired to flee. In addition, although it could not be ascertained who, besides Kaing, the tribunal would charge until the relevant information was made officially public, such information was leaked to the press and other informal networks from the outset of prosecutorial investigations[15] and of which Ieng was doubtless aware. Although there had been a question about whether charges would be brought against Ieng Thirith prior the inception of the tribunal, there was no question that such charges would be mounted against her husband, Ieng Sary. If the couple therefore had intended to flee across the border and seek shelter in Thailand or elsewhere, they would have had more than sufficient reason to do so before the establishment of the ECCC or after word of prosecutorial investigations was leaked out to the press at the latest[16].
The traditional way of determining whether this sub-prong can be satisfied is the existence of such attributes as family, job, position in community, etc. The PTC decided not to go down the beaten track and blaze a new trail instead. To this end, the Chamber set out to examine Kaing’s past behavior to potentially form it into a pattern demonstrating whether Kaing was a flight risk. PTC started off by asserting that Kaing “disappeared from public view” between 1979 and 1999[1]. There are several problems with this argument: (1) to disappear from public view one must be in public view to begin with for which there is no corroborating evidence in Kaing’s case who never was a national celebrity prior to 1979, whose work was secretive and who was only known to his subordinates, superiors and family; (2) the Chamber points out the lack of clarity about Kaing’s whereabouts during said years, which can only be attributed to insufficient research on the matter; (3) the facts that Kaing did not visit his family, changed jobs, changed his name and lived in a particular part of the country hardly amount to persuasive proof of the Chamber’s assertion that he is a flight risk now; (4) the fact that Kaing allegedly disappeared when the first story about him came out is understandable and precautionary, which is not the case today as his name has been communicated to the public sufficiently well in the last 10 years, an observation with which the Chamber agrees[2].
The bedrock of the PTC’s argument for the satisfaction of the test at hand seems to be its assertion that Kaing currently presents a flight risk due to “the possibility of being sentenced to life imprisonment”[3] and that “he will be tried publicly before his victims and their relatives”[4]. In the decision on Noun appeal, the Chamber, however, takes a different approach and asserts that “the risk of flight cannot be evaluated solely on the basis of the gravity of the crimes and possible sentence”[5] which is an interesting roundabout from what seems to be the Chamber’s key argument for the satisfaction of the same test in the decision on Kaing’s appeal. This turnaround in Noun’s case is particular interesting in light of the fact that in its subsequent decision -- Ieng’s case – the PTC scaled said argument back down to that of Kaing’s case[6] leaving out its own admission in Noun’s case that “the risk of flight cannot be evaluated solely on the basis of the gravity of the crimes and possible sentence”.
The Chamber rejected the defense’s argument that Kaing would not be able to flee the ECCC jurisdiction due to lack of means to do so (such a passport, money, etc). The judges argued that they believed that even absent such means Kaing would be able to cross the border illegally or hide himself in Cambodia, “as he did before”[7]. PTC, in respect to the latter, omitted several crucial circumstances which existed during the time Kaing, in the opinion of the Chamber, successfully hid himself in Cambodia and the present time. One such fact is that when Kaing previously “hid” himself there was a certain commotion in Cambodian society caused by the ongoing civil war which made it possible. Another fact is that no one had lost sight of Kaing during this period besides the researchers to whose work the Chamber is referring[8]. Yet another, and perhaps most important, fact is that no one was looking for Kaing prior to 1999 which explains why he could “hide” for such a extended period of time and so successfully. This of course would not be the case if he fled or attempted to flee now, if released pending trial. One fairly recent case of an ex-Khmer Rouge fugitive, Chhouk Rin, is a good example of the Cambodian police’s ability to locate fugitives, even if it takes time and even if they are hiding in a familiar terrain and with a lot of support from the local population[9]. Unlike Rin, however, Kaing does not enjoy the support of the population of any part of Cambodia and is extremely unlikely to be aided and abetted by his former colleagues. These are well-established facts which the PTC chose not to take into consideration.
In Noun’s case and for lack of a history of “hiding”, the PTC outlandishly asserted that Noun’s exercise of his right to remain silent is not consistent with his alleged willingness to participate in the proceedings[10] which coupled with the earlier discussed length of sentence argument amounts to the PTC’s purported satisfaction of the sub-prong at hand.
In Ieng’s case, the Chamber relied on a theory that Ieng had “connections”[11] in Pailin which could help her flee across the border into Thailand if released pending trial. The Chamber agreed with the defense’s argument that “the Charged person could have attempted to flee before”[12], but contended that “the situation is no longer the same now that she is under investigation before the ECCC”[13]. The PTC did not care to elaborate what makes the present situation different from that of June, 2006 when the ECCC judges were sworn in and when it became clear that the process would go ahead. Ieng thus had exactly one year between the beginning of the process and her arrest[14] to make relevant arrangements, had she desired to flee. In addition, although it could not be ascertained who, besides Kaing, the tribunal would charge until the relevant information was made officially public, such information was leaked to the press and other informal networks from the outset of prosecutorial investigations[15] and of which Ieng was doubtless aware. Although there had been a question about whether charges would be brought against Ieng Thirith prior the inception of the tribunal, there was no question that such charges would be mounted against her husband, Ieng Sary. If the couple therefore had intended to flee across the border and seek shelter in Thailand or elsewhere, they would have had more than sufficient reason to do so before the establishment of the ECCC or after word of prosecutorial investigations was leaked out to the press at the latest[16].
Conclusion
In sum, several factors have contributed to the three denials of appeal of pre-trial detention handed down by the Pre-Trial Chamber thus far. The underpinning factor can be traced back to the fact that the ECCC, as a whole, acted ultra vires at the time of its inception to create rules of procedure – known as the Internal Rules (IRs) which did not fully conform either to the existing Cambodian criminal procedure law or to the then draft criminal procedure law which has since been signed into law. Once the IRs were established with them a new pre-trial detention test was established. Although the content of such test was prima facie reasonable, the drafters kept out an important principle of pre-trial detention enshrined in Cambodian law: pre-trial release must be the rule whereas pre-trial detention an exception. The PTC chose to follow suit and ignore this principle of Cambodian and international law too. In its application of the pre-trial detention test, the PTC went to great lengths to justify the pre-trial detention of Kaing, Noun and Ieng. The PTC judges rejected valid international precedents without providing counterarguments, used non-academic sources of information to support their arguments, placed an insurmountable burden on the accused to account for third parties' potential feelings and future decisions based on such feelings, used the decision to exercise particular rights of the accused against the accused, and largely ignored the realities of the current balance of political power in contemporary Cambodia and the sheer absence of political support the accused commanded in it. On its rampage to ensure that every argument for pre-trial release is defeated regardless of its merits, the Chamber warped the pre-trial detention test of the IRs to have them mean something different every time they were applied thus effectively denying the accused a consistent application of the law. In cases where all else failed and the PTC was clutching at straws, this chamber's judges never failed to fall back on the "instability in Cambodian society" argument without referencing this assertion or employing other ways of justifying it.
Writing a minority argument in one of the most recent decisions[1] of the United States Supreme Court, Justice Scalia said "the Nation will live to regret what the Court has done today" speaking of the decision on the extraterritorial reach of the habeas corpus privilege with which he strongly disagreed. This statement resonates in Cambodia and fully applies to what the PTC has done in the last ¾ of a year. The PTC's detention-driven approach is particularly unfortunate in this country in the wake of the existence of a glimmer of hope that had come with the passage of the new criminal procedure law and its principle that pre-trial release must be the rule and pre-trial detention an exception.
In sum, several factors have contributed to the three denials of appeal of pre-trial detention handed down by the Pre-Trial Chamber thus far. The underpinning factor can be traced back to the fact that the ECCC, as a whole, acted ultra vires at the time of its inception to create rules of procedure – known as the Internal Rules (IRs) which did not fully conform either to the existing Cambodian criminal procedure law or to the then draft criminal procedure law which has since been signed into law. Once the IRs were established with them a new pre-trial detention test was established. Although the content of such test was prima facie reasonable, the drafters kept out an important principle of pre-trial detention enshrined in Cambodian law: pre-trial release must be the rule whereas pre-trial detention an exception. The PTC chose to follow suit and ignore this principle of Cambodian and international law too. In its application of the pre-trial detention test, the PTC went to great lengths to justify the pre-trial detention of Kaing, Noun and Ieng. The PTC judges rejected valid international precedents without providing counterarguments, used non-academic sources of information to support their arguments, placed an insurmountable burden on the accused to account for third parties' potential feelings and future decisions based on such feelings, used the decision to exercise particular rights of the accused against the accused, and largely ignored the realities of the current balance of political power in contemporary Cambodia and the sheer absence of political support the accused commanded in it. On its rampage to ensure that every argument for pre-trial release is defeated regardless of its merits, the Chamber warped the pre-trial detention test of the IRs to have them mean something different every time they were applied thus effectively denying the accused a consistent application of the law. In cases where all else failed and the PTC was clutching at straws, this chamber's judges never failed to fall back on the "instability in Cambodian society" argument without referencing this assertion or employing other ways of justifying it.
Writing a minority argument in one of the most recent decisions[1] of the United States Supreme Court, Justice Scalia said "the Nation will live to regret what the Court has done today" speaking of the decision on the extraterritorial reach of the habeas corpus privilege with which he strongly disagreed. This statement resonates in Cambodia and fully applies to what the PTC has done in the last ¾ of a year. The PTC's detention-driven approach is particularly unfortunate in this country in the wake of the existence of a glimmer of hope that had come with the passage of the new criminal procedure law and its principle that pre-trial release must be the rule and pre-trial detention an exception.
For a short while there, there was hope that the new law and its broad dissemination would help break away from decades of automatic and undisputed pre-trial detention practiced in Cambodia. The PTC threw a monkey-wrench into those plans and robbed Cambodia of this chance by greatly undermining the expectations many in the legal profession associated with the passage of the new law and the precedents that would be established by the ECCC. Instead of alleviating -- as it had been expected in the period leading up to the establishment of the ECCC -- these precedents will exacerbate the situation of the accused in Cambodia and make pre-trial release a virtual impossibility. These precedents, communicated to the Cambodian judiciary, will thwart the ongoing non-governmental efforts at bringing sense and coherence to the judicial ordering of pre-trial detention. The future accused and their families will doubtless "live to regret" the PTC's last ¾ of a year of precedent-setting.
Conclusion
In sum, several factors have contributed to the three denials of appeal of pre-trial detention handed down by the Pre-Trial Chamber thus far. The underpinning factor can be traced back to the fact that the ECCC, as a whole, acted ultra vires at the time of its inception to create rules of procedure – known as the Internal Rules (IRs) which did not fully conform either to the existing Cambodian criminal procedure law or to the then draft criminal procedure law which has since been signed into law. Once the IRs were established with them a new pre-trial detention test was established. Although the content of such test was prima facie reasonable, the drafters kept out an important principle of pre-trial detention enshrined in Cambodian law: pre-trial release must be the rule whereas pre-trial detention an exception. The PTC chose to follow suit and ignore this principle of Cambodian and international law too. In its application of the pre-trial detention test, the PTC went to great lengths to justify the pre-trial detention of Kaing, Noun and Ieng. The PTC judges rejected valid international precedents without providing counterarguments, used non-academic sources of information to support their arguments, placed an insurmountable burden on the accused to account for third parties' potential feelings and future decisions based on such feelings, used the decision to exercise particular rights of the accused against the accused, and largely ignored the realities of the current balance of political power in contemporary Cambodia and the sheer absence of political support the accused commanded in it. On its rampage to ensure that every argument for pre-trial release is defeated regardless of its merits, the Chamber warped the pre-trial detention test of the IRs to have them mean something different every time they were applied thus effectively denying the accused a consistent application of the law. In cases where all else failed and the PTC was clutching at straws, this chamber's judges never failed to fall back on the "instability in Cambodian society" argument without referencing this assertion or employing other ways of justifying it.
Writing a minority argument in one of the most recent decisions[1] of the United States Supreme Court, Justice Scalia said "the Nation will live to regret what the Court has done today" speaking of the decision on the extraterritorial reach of the habeas corpus privilege with which he strongly disagreed. This statement resonates in Cambodia and fully applies to what the PTC has done in the last ¾ of a year. The PTC's detention-driven approach is particularly unfortunate in this country in the wake of the existence of a glimmer of hope that had come with the passage of the new criminal procedure law and its principle that pre-trial release must be the rule and pre-trial detention an exception. For a short while there, there was hope that the new law and its broad dissemination would help break away from decades of automatic and undisputed pre-trial detention practiced in Cambodia. The PTC threw a monkey-wrench into those plans and robbed Cambodia of this chance by greatly undermining the expectations many in the legal profession associated with the passage of the new law and the precedents that would be established by the ECCC. Instead of alleviating -- as it had been expected in the period leading up to the establishment of the ECCC -- these precedents will exacerbate the situation of the accused in Cambodia and make pre-trial release a virtual impossibility. These precedents, communicated to the Cambodian judiciary, will thwart the ongoing non-governmental efforts at bringing sense and coherence to the judicial ordering of pre-trial detention. The future accused and their families will doubtless "live to regret" the PTC's last ¾ of a year of precedent-setting.
[1] Boumediene v Bush, 553 U. S. (2008)
[1] Supra Note 9, para. 38
[2] Supra Note 9, paras. 44-46
[3] Ibid, para. 39
[4] Ibid.
[5] Supra Note 10, para. 66
[6] Supra 11, para. 53.
[7] Supra Note 9, para. 40
[8] There is no evidence to believe that journalists Dunlop and Thayer – on whose work the PTC relies for support of this argument – made any effort to interview anyone Kaing had worked with or may have known between 1979 and 1999.
[9] See ‘Khmer Rouge Backpacker Killer Caught’, News article (Agence France-Presse), available online at http://news.ninemsn.com.au/article.aspx?id=68794 (visited 18 July 2008).
[10] Supra Note 10, para. 69
[11] Supra Note 11, para. 54
[12] Ibid, para. 58
[13] Ibid.
[14] Ieng Thirith was arrested on 12 November, 2007
[15] See ‘Names of the Suspects Get Leaked to the Press’, News article, available online at http://ecccreparations.blogspot.com/2007_07_01_archive.html (visited 18 July 2008).
[16] 25 July, 2007
In sum, several factors have contributed to the three denials of appeal of pre-trial detention handed down by the Pre-Trial Chamber thus far. The underpinning factor can be traced back to the fact that the ECCC, as a whole, acted ultra vires at the time of its inception to create rules of procedure – known as the Internal Rules (IRs) which did not fully conform either to the existing Cambodian criminal procedure law or to the then draft criminal procedure law which has since been signed into law. Once the IRs were established with them a new pre-trial detention test was established. Although the content of such test was prima facie reasonable, the drafters kept out an important principle of pre-trial detention enshrined in Cambodian law: pre-trial release must be the rule whereas pre-trial detention an exception. The PTC chose to follow suit and ignore this principle of Cambodian and international law too. In its application of the pre-trial detention test, the PTC went to great lengths to justify the pre-trial detention of Kaing, Noun and Ieng. The PTC judges rejected valid international precedents without providing counterarguments, used non-academic sources of information to support their arguments, placed an insurmountable burden on the accused to account for third parties' potential feelings and future decisions based on such feelings, used the decision to exercise particular rights of the accused against the accused, and largely ignored the realities of the current balance of political power in contemporary Cambodia and the sheer absence of political support the accused commanded in it. On its rampage to ensure that every argument for pre-trial release is defeated regardless of its merits, the Chamber warped the pre-trial detention test of the IRs to have them mean something different every time they were applied thus effectively denying the accused a consistent application of the law. In cases where all else failed and the PTC was clutching at straws, this chamber's judges never failed to fall back on the "instability in Cambodian society" argument without referencing this assertion or employing other ways of justifying it.
Writing a minority argument in one of the most recent decisions[1] of the United States Supreme Court, Justice Scalia said "the Nation will live to regret what the Court has done today" speaking of the decision on the extraterritorial reach of the habeas corpus privilege with which he strongly disagreed. This statement resonates in Cambodia and fully applies to what the PTC has done in the last ¾ of a year. The PTC's detention-driven approach is particularly unfortunate in this country in the wake of the existence of a glimmer of hope that had come with the passage of the new criminal procedure law and its principle that pre-trial release must be the rule and pre-trial detention an exception. For a short while there, there was hope that the new law and its broad dissemination would help break away from decades of automatic and undisputed pre-trial detention practiced in Cambodia. The PTC threw a monkey-wrench into those plans and robbed Cambodia of this chance by greatly undermining the expectations many in the legal profession associated with the passage of the new law and the precedents that would be established by the ECCC. Instead of alleviating -- as it had been expected in the period leading up to the establishment of the ECCC -- these precedents will exacerbate the situation of the accused in Cambodia and make pre-trial release a virtual impossibility. These precedents, communicated to the Cambodian judiciary, will thwart the ongoing non-governmental efforts at bringing sense and coherence to the judicial ordering of pre-trial detention. The future accused and their families will doubtless "live to regret" the PTC's last ¾ of a year of precedent-setting.
[1] Boumediene v Bush, 553 U. S. (2008)
[1] Supra Note 9, para. 38
[2] Supra Note 9, paras. 44-46
[3] Ibid, para. 39
[4] Ibid.
[5] Supra Note 10, para. 66
[6] Supra 11, para. 53.
[7] Supra Note 9, para. 40
[8] There is no evidence to believe that journalists Dunlop and Thayer – on whose work the PTC relies for support of this argument – made any effort to interview anyone Kaing had worked with or may have known between 1979 and 1999.
[9] See ‘Khmer Rouge Backpacker Killer Caught’, News article (Agence France-Presse), available online at http://news.ninemsn.com.au/article.aspx?id=68794 (visited 18 July 2008).
[10] Supra Note 10, para. 69
[11] Supra Note 11, para. 54
[12] Ibid, para. 58
[13] Ibid.
[14] Ieng Thirith was arrested on 12 November, 2007
[15] See ‘Names of the Suspects Get Leaked to the Press’, News article, available online at http://ecccreparations.blogspot.com/2007_07_01_archive.html (visited 18 July 2008).
[16] 25 July, 2007
posted by Stan Starygin @ 2:43 AM
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